Rishi Parkash vs State of Haryana

M.M. Punchhi, J.—This a revision petition against the appellate order of the Sessions Judge Sonepat, whereby he in an appeal against conviction, set aside the conviction and sentences passed on the accused remanding the case for fresh trial in accordance with law and in compliance of his direction s given in his judgment.

The petitioner Rishi Parkash was employed as a Cashier in a cooperative Society. He was accused of having committed criminal breach of trust in respect of a sum of Rs. 21,448.93, which has two parts. A sum of Rs. 7,371.93 was said to be cash in hand with him in June, 1975. The remaining amount is said to have been recovered by him from some members of the society without accounting for those sums in the concerned bank and society papers. On these allegations the petitioner was tried by the trial Magistrate for offence under sections 408, 468, 471, I.P.C. The learned Magistrate held him guilty for the said offences. His coaccused Munshi Singh was held guilty for offences under section 408 read with section 109, I.P.C. He was awarded various terms of imprisonment Against this conviction and sentences, he preferred an appeal to the Court of Session which was disposed of by the impugned order sought to be revised.

The learned Sessions Judge has observed that remand was necessitated on three grounds :

(i) Because material evidence of the prosecution has not been recorded by trial Magistrate.

(ii) Because the statement of four out of twenty three PWs examined by the prosecution (PW 17 to PW 20) do not bear the signatures or the initial of the trial Magistrate; and

(iii) Because one of the witnesses namely Kartar Singh PW 12 was discharged after recording his statement in part to be called again for recording his statement but his statement was not completed by summoning him afresh.

He has elaborated all these points to come to the view that on remand a fresh trial be held against the accused in accordance with law.

There is no dispute that it was a long drawn trial against the petitioner. Charge against the accused was framed on 30.5.1977. The prosecution had 23 witnesses to examine.

So far as the first point is concerned, it is patent from the record that the prosecution was given a number of opportunities to produce its evidence and then that last opportunity was given to it on 2.3.1982. Evidence was to be examined on 30.4. 1982. On that day, the prosecution did not examine its remaining evidence. The Court was thus constrained to close evidence. No fault could thus be found at he conduct of the Magistrate in closing the prosecution case. It is besides the point whether material evidence by the prosecution had been left out or not. The Court has otherwise inherent powers to call a witness as a Court witness to elicit information from him pertaining to the case. That power can even be exercised at the appellate state. Thus, on the first point no necessity arose for the case to be remanded for fresh trial. The learned Sessions Judge was in error.

So far as the second point is concderned, the mere fact that signature or initial of the Presiding Officer are not forthcoming at the end of the evidence of PWs 17 to 20 is no ground for remand. It is at best an irregularity capable of being ignored. Nobody has disputed the examination of those witnesses at the trial and in the presence of the accused. The irregularity could at best have been noticed and the omission deemingly supplied. So, on the second ground also the learned Judge was in error.

On the 3rd point, Kartar Singh PW 12 was discharged on 9.4.1981 had his statement deferred. Yet the prosecution was required of its own to examine him when it was given the last opportunity for the purpose of evidence. For this ground too, the same comment is attracted as of the ground No. 11.

Other comments made by the learned Sessions Judge in the order seems to be merely procedure and have no bearing on the merits of the case. These do no deserve to be tested in this order.

All the grounds taken by the learned Sessions Judge having been demolished, the natural outcome is that the revision petition is accepted and the impugned order is set aside directing him to hear the appeal on meritsin accordance with law. Parties through their counsel are directed to put in appearance on 4.2.1985.

Revision accepted.